Litigating for health care reform in Canada: How new legal challenges aim to extend Chaoulli’s scope

Posted By Silvia Neagu – Feb. 17, 2014

On February 22nd, 2014, the McGill Journal of Law and Health’s annual colloquium will be revisiting the divisive Chaoulli decision and analyzing the impact it has had nine years after its release. The colloquium, “Litigating for health care reform in Canada: How new legal challenges aim to extend Chaoulli’s scope” will examine legal decisions from Alberta and British Columbia that indicate Chaoulli’s influence is spreading to other provinces. While legally Chaoulli’s ratio only applies to Quebec, the issues at the heart of the case – two-tier health systems, access to health care and a resource-strained system –remain relevant. The decision begs the question of whether the decision was the first sign of a larger problem in Canadian health system.

The facts in Chaoulli

Mr. George Zeliotis had had several hip surgeries within Quebec’s public health system and had spoken out against the delays he experienced. Dr. Jacques Chaoulli was a physician who provided residential medical services and wanted to get a license to operate a private hospital. The two brought an application for a declaratory judgment stating that s. 15 of the Health Insurance Act and s. 11 of the Hospital Insurance Act, which prohibited patients from purchasing private health insurance for services covered by public health care, violated s. 1 of the Quebec Charter and s. 7 of the Canadian Charter, which protect one’s right to life, liberty and security of the person. The Actsdid not prohibit the existence of private health care facilities, but only the coverage of their services by insurance plans. The plaintiffs argued that given the long waiting times in the public system, the absolute ban on insurance for private health care violated their constitutional rights.

Both the Superior Court of Quebec and the Quebec Court of Appeal agreed that the interference with the applicants’ rights were consistent with the principles of fundamental justice under s. 7 of the Canadian Charter.

The judgment

Writing the majority reasoning, Deschamps J found that the provisions violated the applicants’ rights under s. 1 of the Quebec Charter and did not address the Canadian Charter violation in her reasoning. While McLachlin CJ, Major and Bastarache JJ agreed with Deschamps’ reasoning with respect to the Quebec Charter, the three judges also addressed s. 7 of the Canadian Charter.

Binnie, Lebel & Fish JJ were in dissent, having found that the violations were in accordance with the principles of fundamental justice and the violation of s. 1 of the Quebec Charter was saved under s. 9.1.

s. 1 of the Quebec Charter: the Right to life and personal inviolability

Deschamps J began her judgment by describing the health system in the following way: “[t]he public health care system, once a source of national pride, has become the subject of frequent and sometimes bitter criticism.”[1]

She went on to find that the waiting lists, combined with the absolute ban on private insurance, infringed patients’ right to life and personal inviolability. Their rights were infringed since the ban increased patients’ risk of death, the risk that the injuries were irreparable and left patients in pain and with their quality of life affected.[2] The judgment called the existence of waiting times in Quebec as an “implicit form of rationing.”[3] Deschamps J also found that the violations were not justified under s. 9.1 of the Quebec Charter, since the prohibition on private insurance did not minimally impair patients’ rights. Interestingly, Deschamps J asserted that evidence from the rest of Canada and other OECD countries did not support the view that an absolute ban was not necessary to protect the integrity of the public plan.[4]

s. 7 of the Canadian Charter: The Right to life and security of the person

McLachlin CJ’s judgment recognized that “access to a waiting list is not access to health care”[5]and that “delays in the public system are widespread and have serious, sometimes grave, consequences.”[6] Therefore, she found that the right to life was engaged because delays could result in death, while the right to security of the person was engaged because of the possibility of psychological and physical suffering caused by the delays. Justice McLachlin wrote that the absolute prohibition on insurance created a situation where only the extremely rich could avoid the harms caused by the waiting lists because they could purchase private health services without using insurance:

“We conclude, based on the evidence, that prohibiting health insurance that would permit ordinary Canadians to access health care, in circumstances where the government is failing to deliver health care in a reasonable manner, thereby increasing the risk of complications and death, interferes with life and security of the person as protected by s. 7 of the Charter.”

McLachlin CJ found the provisions to be arbitrary and therefore not in accordance with the principles of fundamental justice because “the evidence on the experience of other western democracies refutes the government’s theoretical contention that a prohibition on private insurance is linked to maintaining quality public health care.”[7] She went on to find that the interference was not saved under s.1 of the Charter.

Conclusion

While the Chaoulli decision was seen as an attack on medicare, it was the catalyst to some positive developments for it too. The Quebec government pledged to cover radio-oncology, cancer surgery and advanced cardiac care in a private clinic if patients had to wait more than three months. It also allowed hip, knee and cataract surgeries to be covered by private insurance and pledged to pay for private care if the wait was more than 6 months. [8] Hence, the government actually adopted the Court’s ruling but only with regard to those three treatments. The federal government also earmarked more money for wait time reduction for the provinces and Ontario introduced a plan to reduce wait times.[9]

To RSVP or to receive more information about the colloquium, please contact: mjlh.colloquium@gmail.com